bob.gov 2025-09-07 01:40 p.m.On point 1:
True that Egan involved MSPB review because Congress created it. But the constitutional floor of due process does not depend on statute. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541 (1985) - “[T]he right to due process ‘is conferred not by legislative grace, but by constitutional guarantee.’” Even if no statute requires a hearing, the Constitution does if a protected liberty or property interest is at stake. Also Mathews v. Eldridge, 424 U.S. 319 (1976) establishes that due process is not a question of statutory grace.
On point 2: You were claiming that no harm exists to the plaintiff in your motion so
On point 3: Egan said clearance revocation doesn’t necessarily impute disloyalty. But stigma can still arise from official action. Courts have repeatedly recognized stigma in government acts that implicitly brand an official unfit.
Codd v. Velger, 429 U.S. 624, 627 (1977) - stigma exists when the charge “might seriously damage his standing and associations in his community” or “impose on him a stigma or other disability that foreclosed his freedom to take advantage of other employment opportunities.” See also: Wisconsin v. Constantineau, 400 U.S. 433, 437 (1971), Owen v. City of Independence, 445 U.S. 622, 633 n.13 (1980),
The Governor’s memoranda are government action on the public record. That alone is enough to constitute publication. See Doe v. Dep’t of Justice, 753 F.2d 1092, 1113 (D.C. Cir. 1985) (agency memorandum revoking clearance constituted stigmatizing action when placed in personnel file).
and whilst the minimum is a hearing courts have reinstated officials where stigma-plus was proven and due process denied. See McGhee v. Draper, 639 F.2d 639, 643–44 (10th Cir. 1981).
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